4.  The applicant was born in 1951 and lives in Istanbul. She is a journalist/columnist and author of a number of books.
5.  In 2003 the applicant wrote a series of articles in a daily newspaper, Vatan, criticising certain provisions of the draft criminal code prepared by the commission established for the drafting of a new Criminal Code (“the Commission”) proposing reduced sentences for certain offences committed against women and children, inter alia, honour killings and rape.
6.  On 19 October 2003 an article entitled ‘Obsessed Professor’ written by the applicant was published in Vatan. The article read as follows:
“I can already guess what will happen after this article. The professor in question will reach for the phone and ask why I am writing such things. Not to me but to a male writer or manager at the newspaper. That is how he did it last time. It appears that he does not like to speak with female journalists.
Anyway he believes that all crimes intentionally committed against women and children and even those committed with bare hands should receive reduced sentences. Rape, violence and murder must have a number of mitigating circumstances and if those circumstances exist then sentences should be reduced to ten to fifteen years. For example those who rape children should get away with a lenient sentence if that little girl also “wanted it”. The rapist should be freed so that such incidents continue to plague us.
In my article entitled “are the women in parliament alive?” published two days ago, which I had ended with a note “to be continued”, I objected to the unjust, unfair and out-of-date articles contained in the new draft Turkish Criminal Code and pointed out that similar reductions in the penalties which currently exist in the Criminal Code had led to the killing of young girls and women one after another.
The remainder of the article could not fit into my diminishing column space, due to advertisements, and as a result was delayed (it seems that I will have to devise a new coding system so that you can understand me in a few words). However, we can say that all things happen for a reason and it was good that it was delayed. As I was asking myself why no parliamentarian - at least no female parliamentarian - apart from AKP parliamentarian N.Ç., contested this proposal, CHP Adana parliamentarian G.E. called me to explain that they were working intensively on this issue.
She said that all women parliamentarians, irrespective of their party background, will act together. Here is solidarity to be proud of!
It is difficult to understand why Prof. Dr. S.D. (full name is cited in the original article) is so obsessed and has a discriminatory attitude as regards criminal provisions concerning women and children. We witnessed the same attitude during the reform of the Civil Code. I think instead of having elderly legal scholars we should now have young lawyers working at the Justice Commissions. Those who are in touch with world developments and who are aware that discriminatory attitudes have become out of date. Prof. S.D., with his way of thinking which reflects his 80 years, stands alone.
In fact, he left the Justice Commission meeting after an argument broke out with the members of parliament when he insisted on his views.
In fact he should have thanked them. If this draft had been accepted in its original form, who would know how many generations of children, women and families would remember him?
How they will remember him, he can guess.
Therefore...I consider it to be a great opportunity that the Turkish Criminal Code will be re-examined by us before it is discussed and criticised by the European Union.”
7.  On 4 November 2003 Prof. Dr. S.D., the president of the Commission (“the plaintiff”), brought a civil action for compensation against the applicant, the editor-in-chief of the newspaper and the publishing company (“the defendants”) before the Şişli Civil Court of First Instance on the ground that certain remarks in the article above constituted an attack on his personal rights.
8.  Before the first-instance court the defendants maintained, inter alia, that the aim of the article in question had not been to insult the plaintiff but to criticise various provisions of the draft Criminal Code. In this connection, they considered that the words used in the impugned article were not insulting. They emphasised that the article was truthful in that the impugned provisions in the draft Criminal Code were subject to virulent criticism by many others, including ministers. In support of their arguments the defendants submitted to the court, inter alia, a number of published articles written by various academics, journalists, and people from NGOs, criticising the controversial provisions of the draft Criminal Code.
9.  On 26 February 2004 the Şişli Civil Court of First Instance ordered the applicant, the editor-in-chief of the newspaper and the publishing company jointly to pay compensation to Prof. Dr. S.D. in the amount of 10,000,000,000 Turkish liras (TRL), plus interest at the statutory rate applicable from the date of the legal action. It also ordered the publication by the newspaper of a summary of its judgment.
10.  In its decision, the court stated, inter alia, that the press had a certain privileged position, as it had the competence and responsibility to provide information, educate, enlighten and direct the public by following up incidents, investigating, assessing and diffusing. However, like all freedoms the privilege and freedom of the press were not without limits. In this connection, it referred to the limitation imposed on the press by the relevant articles of the Constitution, the Civil Code and others in so far as they concerned respect for personality rights.
11.  The court referred to the following passages:
“It is difficult to understand why Prof. Dr S.D. is so obsessed and has a discriminatory attitude as regards criminal provisions concerning women and children. We witnessed the same attitude during the reform of the Civil Code. I think instead of having elderly legal scholars, we should now have young lawyers working at the Justice Commissions. Those who are in touch with world developments and who are aware that discriminatory attitudes have become out of date. Prof. S.D., with his way of thinking which reflects his 80 years, stands alone. “
12.  It considered that the above passages qualified the plaintiff as an obsessive and a backward person and a bigot who discriminated against women and did not talk to women, and thus insulted him. There was therefore an attack on his personality rights.
13.  The court noted, inter alia, that the plaintiff, who was known as “the professor of professors”, was an internationally recognised legal scholar who had written thousands of articles, translations and jurisprudential analyses.
14.  It considered that the article in question had affected the plaintiff negatively in his life, as it was a savage and aggressive attack on a person who, inter alia, had made a great contribution to the establishment, development and execution of the contemporary legal system.
15.  In addition, the court referred to the emails submitted by the defendants to note the degree of hatred of the public towards the plaintiff and other members of the Commission as a result of the publication.
16.  The court therefore decided that there was a need to award compensation to the plaintiff, the amount of which it determined on the basis of, inter alia, the economic and social status of the parties and the nature of the infringement before it.
17.  The defendants appealed. In particular, they maintained that the court had failed to take into account their evidence demonstrating the public outcry against the draft proposal, and had refused their request for a video recording of a television programme the plaintiff had appeared on after he had lodged his compensation claim to be admitted in evidence.
18.  On 14 September 2004 the Court of Cassation rectified the judgment in so far as it concerned the order to publish a summary of the judgment in the newspaper, and upheld the remainder of the judgment.
19.  The defendants’ request for a rectification of its decision was dismissed by the Court of Cassation on 14 March 2005.
20.  On 26 October 2003 an article entitled ‘If you can’t escape, enjoy it’, written by the applicant, was published by Vatan. The article read as follows:
“We are going through such times and witnessing such unbelievable events and discussions that no-one can escape their duties. In particular, those who, due to their jobs, have a first-degree debt to the next generation. Journalists, lawyers, educators, non-governmental organisations, and, particularly, women. Working women.
In my article published on Saturday and entitled ‘The Virginity Crisis’ I referred to Prof. Dr. D. So.’s remark (full name is cited in the original article) “if a rapist marries his victim then his sentence should be reduced. All men want to marry virgins” and emphasised, once again, that some members of this commission responsible for the new draft needed psychological treatment.
When I was writing those lines I had not yet heard D. So.’s later remark “If I had been raped, I would have married him”. Having heard this I believe that certain people should be urgently locked up in a clinic. When the degree of their illness has reached such a level as to cause severe harm to society this is essential. This unhealthy mentality will cause harm to thousands of women and children (every day we read in the papers about eight to twenty perverts raping young girls and women in every corner of Turkey) and will incite ignorant, unemployed and sick people to commit crimes.
By demolishing the concept of crime and punishment, in short, justice, they will create an unhappy and anarchic country where tragic events will be heard of one after another and people will be unbalanced and unhealthy.
Prof. (I don’t want even to say it) So. and some other members of the Commission are trying to make the weird Turkish joke of “If you can’t escape it, enjoy it”, which cannot even be imagined in contemporary societies, into a reality.
As they try to reduce the sentences given for rape, reports of rapes of children and young girls are increasing. Perverts crowd the entrances of schools.
A scandal is taking place in respect of the Turkish Criminal Code. This scandal, like the headscarf crisis at the reception given by the President and others, will cast a shadow over the 80th anniversary of the establishment of the Republic.
Tonight at Habertürk [private television channel] female writers are going to discuss all these shadows on ‘Press Club’. They called from Habertürk yesterday, but since I am not fully recovered I am not sure if I can make it. But as a journalist, who has been actively involved in women’s rights issues with relevant ministries together with non-governmental organisations for the past fifteen years, and who has written much on issues such as non-discrimination and the headscarf problem, I wish it dearly.
In a country where even professors have this mentality, and in order to prevent the harm that it will cause, it has become imperative to discuss everything openly.”
21.  On 4 November 2003 an article entitled ‘The Never-Ending Virginity Battle” written by the applicant was published by Vatan. The article focused critically on the statements made by Prof. Dr D.So. on a television programme called ‘Press Club’.
22.  On 24 December 2003 Prof. Dr. D.So., a member of the Commission and advisor to the Minister of Justice, brought a civil action for compensation against the applicant, the editor-in-chief of the newspaper and the publishing company (“the defendants”) before the Ankara Civil Court of First Instance, on the ground that certain remarks in the articles published on 26 October 2003 and 4 November 2003 constituted an attack on his personal rights.
23.  On 30 November 2004 the Ankara Civil Court of First Instance ordered the applicant and the publishing company jointly to pay compensation to Prof. Dr. D.So. of TRL 12,000,000,000 for the article of 26 October 2003 and TRL 3,000,000,000 for the article of 4 November 2003, together with interest at the statutory rate from the date of publication of the articles. The case was dropped in so far as it concerned the editor-in-chief.
24.  In its decision the court held, inter alia, that freedom of the press was limited by protection of honour and reputation of persons. It considered that when criticising turns into unfair badmouthing, insulting and demeaning language, the objective boundaries of criticism are exceeded and abuse of rights occurs. In this connection, the court held that the following principles had to be respected: truthfulness, public interest, topicality and interconnectedness between the thoughts and the words used and the aim sought.
25.  The court, while underlining the importance of different opinions and ideas and the usefulness of criticism, held, inter alia, that in the instant case the author had implied, in her article of 26 October 2003, that the plaintiff was stupid, unhealthy and mentally ill and that she considered that he was not apt to be a professor.
26.  The first-instance court referred to the following passages:
“...In my article published on Saturday and entitled ‘The Virginity Crisis’ I referred to Prof. Dr. D. So.’s remark “if a rapist marries his victim then his sentence should be reduced. All men want to marry virgins” and emphasised, once again, that some members of this commission responsible for the new draft needed psychological treatment.
When I was writing those lines I had not yet heard D. So.’s later remark “If I had been raped, I would have married him”. Having heard this I believe that certain people should be urgently locked up in a clinic. When the degree of their illness has reached such a level as to cause severe harm to society this is inevitable. This unhealthy mentality will cause harm to thousands of women and children (every day we read in the papers about eight to twenty perverts raping young girls and women in every corner of Turkey) and will incite ignorant, unemployed and sick people to commit crimes.
Prof. (I don’t want even to say it) So. and some other members of the Commission are trying to make the weird Turkish joke of “If you can’t escape it, enjoy it”, which cannot even be imagined in contemporary societies, into a reality.”
27.  It further referred to a part of the applicant’s column entitled ‘Saying of the Day’, in which she cites the famous saying, her choice of the day, which read: ‘Never argue with stupid people, they drag you down to their level, and beat you with experience.”
28.  It further held that the applicant had expressed similar remarks in her article of 4 November 2003 and that these remarks constituted an attack on the plaintiff’s personality rights.
29.  The defendants appealed. In particular, they maintained that the articles had been written on the basis of statements given by the plaintiff to the media. In this respect, they submitted that the article of 26 October 2003 had been written following the publication of an interview with the plaintiff on 25 October 2003 in another newspaper, namely Milliyet, and the article of 4 November 2003 after the plaintiff’s statements made on a television programme on 2 November 2003.
30.  On 25 April 2006 the Court of Cassation, by a majority vote, quashed the judgment of the first-instance court.
31.  As regards the statements contained in the applicant’s article of 4 November 2003 it held that the article concerned a discussion programme in which the plaintiff had taken part, and that it had criticised the mentality behind the drafting of the Turkish Criminal Code and the statements of the plaintiff which had been reported by the press. It therefore considered that that article did not infringe the plaintiff’s personality rights.
32.  As to the article of 26 October 2003, the court held that the limits of permissible criticism had been exceeded in some parts of the article and that therefore the decision of the first-instance court was correct. However, having regard to the circumstances, especially the status of the plaintiff and the aim of the publication, it found the compensation awarded by the domestic court excessive.
33.  One of the judges Mr M.U. partially dissented. In his dissenting opinion, he held, inter alia, that the plaintiff had given rise through his own statements to the criticisms expressed in the article of 26 October 2003, and that therefore he could be expected to tolerate heavy criticism. He considered that the limits of permissible criticism had not been exceeded in the case.
34.  Following the Court of Cassation’s ruling, the first-instance court dismissed, on 12 December 2006, the compensation claim as regards the article published on 4 November 2003 and awarded the plaintiff 8,000 new Turkish liras (TRY)[1] in respect of compensation for non-pecuniary damage for the article published on 26 October 2003.
35.  The defendants appealed.
36.  On 10 May 2007 the Court of Cassation upheld the judgment of the first-instance court. It dismissed the defendants’ request for a rectification of its decision on 26 November 2007.